The indication of the expected filing emerged in an April 13 submission by defense lawyers asking judges to grant them an extension to the deadline for filing the request. The extension was necessary because the court’s case management system was down for days as new software was being installed. This had made it impossible for defense lawyers to access the court record and evidence submitted in the case.
Ntaganda has been on trial in The Hague since September 2015, and the prosecution last month closed its case-in-chief, with its last witness having testified in mid-February 2016. Victims participating in the trial completed presenting their testimony earlier this month, thereby paving the way for the possible opening of the defense case.
The former commander of the Union of Congolese Patriots (UPC) faces 18 counts of war crimes and crimes against humanity, allegedly committed during 2002 and 2003 by himself and his soldiers, while he was a top leader in the militia. Ntaganda has denied all charges, and his lawyers contend that the prosecution has not proved its case against the accused.
Pursuant to a June 2015 decision on the conduct of proceedings in the trial, the defense was required to file the no case to answer motion within five days of victims completing their testimony, implying April 18. The defense asked judges to move the deadline to April 25.
Stéphane Bourgon, the lead defense lawyer, stated that although the defense had already conducted some research and preparation towards filing its no case motion, the submission had to be done in accordance with the trial chamber’s rules for conduct of proceedings in the Ntaganda trial, which required access to the entire case record and material that had been admitted in the case.
“This is crucial for a request of this nature and importance,” he added. “Furthermore, in the final days before submitting its request, the Defense will need to verify the authorities relied on.”
In April 2016, a request for a no case to answer resulted in the termination of the case against Kenya’s deputy president William Samoei Ruto and radio journalist Joshua arap Sang. In their application, the accused asked judges to find that there was no case to answer, to dismiss the charges against both accused, and enter a judgement of acquittal. Whereas the judges terminated the case, they stated that their decision did not preclude new prosecution in the future either at the ICC or in a national jurisdiction.
Besides the anticipated no case to answer submissions, Ntaganda’s defense has requested judges to stay the proceedings, arguing that the prosecution abused the court’s processes by inappropriately accessing critical defense information. In the request filed last month, which judges have not yet ruled on, defense lawyers argue that while the prosecution was investigating Ntaganda for alleged witness tampering, it acquired thousands of recordings of his conversations, including those on defense strategy and his personal knowledge of the case. As a result, argue defense lawyers, Ntaganda has suffered irreparable damage.
However, the prosecution has dismissed the defense’s attempt to halt the trial, claiming Ntaganda’s lawyers failed to articulate any facts that would amount to an abuse of process or that warranted “the exceptional remedy” of a stay of proceedings.
Meanwhile, last month Ntaganda’s lawyers requested judges to postpone the date for the start of the defense case, arguing that they lacked adequate time and resources to prepare their case and start presenting evidence by the end of May, as earlier directed by judges. Judges rejected the postponement request and thereafter dismissed an attempt by the lawyers to appeal this decision.
The verdict of the judges on extending the deadline for filing the no case to answer motion has not been made public.